Political Analysis: The Sotomayor Confirmation Hearings

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Critics of US Supreme Court Nominee Sonia Sotomayor say they have concerns about her ability to render impartial legal decisions. Are those concerns valid or are they just playing politics?

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MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh. You're listening to These Days on KPBS. Critics of Judge Sonia Sotomayor are criticizing more than her judicial rulings during this week's Senate confirmation hearings. They are questioning her ability to decide cases impartially if she is confirmed as a justice of the U.S. Supreme Court.

The reason for their doubts, they say, are statements Sonia Sotomayor has made about the effects her personal experience and her heritage could make on her rulings. But some say it is precisely because of her impoverished beginnings and her Latina heritage that she can bring a perspective to the court that is sadly missing. At the heart of this debate is the issue of identity politics, and with us to discuss how that issue is playing out in the Sotomayor confirmation is my guest, KPBS political correspondent Gloria Penner. Welcome, Gloria.

GLORIA PENNER (KPBS Political Correspondent): Good morning, Maureen.

CAVANAUGH: Well, so, Gloria, tell us, first of all, what is identity politics?

PENNER: Sure. Identity politics is political action to advance the interests of members of a group whose members perceive themselves to be oppressed by virtue of a shared and marginalized identity, such as race or ethnicity, religion, your gender and even your sexual orientation. But now it's a common filter for potential justices. For example, Dwight Eisenhower had electoral politics on his mind when he selected an unknown Irish Catholic New Jersey Justice named William Brennan. Lyndon Johnson appointed Thurgood Marshall and he, you know, was black and he was the personification of LBJ's push for civil rights reform. The first woman, Sandra Day O'Connor, she didn't join the court until 1981. She resigned and then Ruth Bader Ginsburg was like the woman's seat. But, on the other hand, diversity doesn't always help the candidates. For example, Herbert Hoover's administration hesitated to nominate Benjamin Cardozo in 1932 because Herbert Hoover thought it would be too controversial to have two Jews and maybe even two New Yorkers on the high court. So it can work for or against you. There was actually the so-called Catholic seat that goes back to Andrew Jackson and it wouldn't be until late in the 19th century that a second Catholic white would sit on the court and now we have a whole bunch of Catholics on the court. Those are all identities and that's what we mean by identity politics.

CAVANAUGH: Now the identity of Sonia Sotomayor as the first Latina on the U.S. Supreme Court, her nomination was praised in many quarters precisely for that. So does her nomination carry on this long history of identity politics?

PENNER: Well, sure. Committee chairman Patrick Leahy, he's a Democrat, he said that she has a historic role to play as potentially the first Hispanic on the Supreme Court, as well as the third woman. There's identity politics. However, there's been this ugly attack with claims of Sotomayor's racism and the fact that she belonged to the Hispanic version of the KKK and that she's more concerned about issues of race than issues of law. And she's even been labeled as un-American. So you see, it can work both ways.

CAVANAUGH: Right. Now the Republicans are really leading the charge, especially in these confirmation hearings against Sotomayor's nomination. And who is leading the charge for the Republicans on that Senate panel?

PENNER: Well, the infamous or the famous Senator Jeff Sessions. You know, interestingly enough, in 1986, Sessions was nominated for a federal judgeship by President Ronald Reagan and the nomination was killed by the same committee. Different people on it, of course, the Senate Judiciary Committee. It refused and the vote was nine to nine to let the nomination come to the floor for a vote. They accused him, his opponents accused him of gross insensitivity on racial issues. And allegedly he made a variety of comments that when he jokingly said that the Ku Klux Klan was no so bad until he found out that some of them smoked marijuana. Sessions also allegedly referred to the National Association for the Advancement of Colored People, the NAACP, and the American Civil Liberties Union as un-American and communist-inspired because they forced civil rights down the throats of the people. So at his confirmation hearings, Sessions said that the groups could be un-American when they involved themselves in un-American positions in foreign policy. Well, needless to say, he didn't get on the federal court but he did get back into politics. In 1996, he was elected the junior Senator from Alabama and he is now the top Republican on the Senate Judiciary Committee.

CAVANAUGH: Come full circle.

PENNER: It really has come full circle. But that's an interesting – it's more like an oval than a circle, I think.

CAVANAUGH: Well, Senator Sessions has also called a group that Sonia Sotomayor belonged to or was on the board of, he called it an extremist group. And that group is the Puerto Rican Legal Defense Fund. Now that name has come up in the confirmation hearings. What can you tell us about this organization?

PENNER: The organization fights legal battles for minorities, battles in which they feel as though they've been denied jobs, where they've been denied bilingual classes in schools, and where they felt in some communities there should be more Latino police officers. But at this point, Sotomayor served as one of its board members and had for many, many years, so conservatives have called the group's stance on capital punishment and abortion rights as well as its advocacy of affirmative action in worker discrimination cases extreme and shocking. And some have even suggested that Sotomayor's longtime association with the group is an indication that she's biased and would be unable to render impartial decisions as a Supreme Court justice. And also, you know, it has to do with whether there's simply an over-politicization going on now of the work of this defense fund and whether it's sort of the butt of the pursuit of Sotomayor.

CAVANAUGH: Yes, both New York Mayor Michael Bloomberg and the NAACP have come to the Legal Defense Fund's defense against these attacks, saying that they've worked with the agency and, you know, it's just a – basically, a civil rights organization. Now some observers say there's a lot of code words and issues being used by Republicans during these confirmation hearings. They say the idea is to make Sonia Sotomayor appear different and threatening. Now, are there any example of what's being called code words?

PENNER: Sure. Well, first of all, the idea of her belonging to the Hispanic version of the KKK, I mean, right there that means she's more concerned about issues of race than issues of the law. She's even been labeled un-American; those are codes. But, you know, the question is, is she really the target, or is to stimulate fear among a certain portion of the citizenry of code words of identity politics. They meant – they're meant to indicate someone who is of a minority status, a woman, a person of color, a homosexual, sometimes not a Christian, and it means that the person or the group places the interest of their group above the common good and this can be scary to a whole bunch of people. You know, people who feel as though maybe they're being disenfranchised or about to be by all of these minority groups. And just to follow this a little bit, Maureen, we can get such code phrases as 'political correctness' and 'reverse discrimination' and, in a way, if you play that repeatedly in mainstream media, it enters into common conversation. And so, you know, having political correctness or reverse discrimination, it sort of continues this whole idea of the fear factor that code words will instill.

CAVANAUGH: Now I wonder, though, Gloria, since we are talking about the politics of all this, is there a – this is a dangerous political game, it would seem, for Republican critics. They say they're concerned that Sotomayor will forsake the law for her personal biases if put on the high court bench. But there are many people of Latino background that are quite proud to have the first Latina nominated to the Supreme Court so isn't this a dangerous political game that her critics are actually engaged in?

PENNER: Well, certainly because if you think of conservative Republicans or Republicans in general wanting to attract more Latinos into their tent, this will do just the opposite. It will drive them away. And I think that's a very dysfunctional dance that they are playing right now. However, apparently the feelings are so intense about her among the Republicans on the Judiciary Committee, you just look at the questioning. It's going to go on again today for nine more hours, so there's a lot of powerful feeling here. And it's going to be interesting to see whether her supporters are going to play hardball politics, too.

CAVANAUGH: Yes, I have heard that they've questioned the background of one of the witnesses against her.

PENNER: Yeah, this was firefighter Frank Ricci. He was one of those firefighters in New Haven who had taken this examination and the results were thrown out because apparently not enough minorities came through for the results and could not get promoted within the fire department. And Sotomayor sided with New Haven on this and then it was overturned by the Supreme Court, just to give you a little background. And so her advocates are urging journalists to scrutinize the background of firefighter Frank Ricci, that he has a troubled and litigious work history and that Ricci's past, he claimed that the city of New Haven discriminated against him because he was dyslexic and that he was fired by a fire department, Middletown, Connecticut, allegedly, because of safety concerns he raised. So you can see that the hardball will be played in both directions.

CAVANAUGH: Both sides playing that game. Yes.

PENNER: Yeah.

CAVANAUGH: And so it all comes down to, I guess, what one person, one academic, I read now calls the politics of Supreme Court nominations, he calls it a blood sport.

PENNER: You're talking about Gary Rose. He's a government and politics professor at Sacred Heart University in Fairfield, Connecticut. And, first of all, he says to go after so sympathetic a plaintiff as Frank Ricci is a new low in the politics of personal destruction. And, Maureen, you and I and our listeners have certainly witnessed personal destruction in the past in terms of the joy of politics. But he isn't the only one. Think back to the Anita Hill situation and Justice Thomas. The warning against Anita Hill by then Senate Minority Leader Alan Simpson was that she would be injured, destroyed, belittled, hounded, harassed if she testified against nominee Clarence Thomas. I mean, that in itself tells you that it's a blood sport. And remember the word 'Borked'?

CAVANAUGH: Yes.

PENNER: Yes, I mean, this was candidate Robert Bork who was the Ronald Reagan candidate, I think, for the Supreme Court, and that's entered our lexicon for savaging a nominee by exaggerating his positions with simplistic slurs. And that's for – Do you have time? I want to read you something from Ted Kennedy on Bork when Bork's nomination was up. 'Robert Bork's America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of the government and the doors of the federal courts would be shut on the fingers of millions of citizens.' That's from Ted Kennedy during the Bork nomination proceedings.

CAVANAUGH: You have to wonder if a nomination to the Supreme Court is really an honor.

PENNER: Yeah. Oh, one wants not to be Borked.

CAVANAUGH: Thank you so much, Gloria, I appreciate it.

PENNER: You're welcome.

CAVANAUGH: I've been speaking with Gloria Penner. She is KPBS political correspondent and host of Editors Roundtable here on KPBS, and is also the host of KPBS Television's new weekly news program, San Diego Week, Friday nights at 7:00. You can read her weekly blog, Political Fix, on our website at KPBS.org. And of course you can keep this discussion going online. Post your comments at KPBS.org/TheseDays. These Days continues in just a moment.

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